Parody , satire and humor walked into a bar and got benched. AIB is getting roasted and Kapil's Palak is wilting -all for want of a simple smile. Humor is going into hiding and those harbouring it hurting sentiments. There is no “humouring“ historical figures, godmen or of course the politicians par excellence. The gregarious Sardar is waiting in the wings for the courts to bestow a protective shield against the assault of the poor jokes. Stand up comedians need a sit down dharna to protect their right to irreverence and insouciance.

Free Speech & Stifled Humor

Roasting the roasters, which is now trending, makes comedy very serious business and stand-up acts hazardous occupation. It is not just the possibility of criminal defamation that the comedian runs the risk of but also prosecution for creating communal violence under S.153A Indian Penal Code (IPC) or offending religious sentiments under S.295A IPC. The Supreme Court is not only deciding on the constitutionality of criminal defamation provisions under IPC but has also admitted a Public Interest Litigation (PIL) contesting the right to host “sardar jokes“ online.

The four pillars upholding the need for freedom of expression, recognised by the Supreme Court are individual self-fulfillment; discovery of truth; participation in decision-making; and reasonable balance between stability and social change. Article 19 (2) of the Indian Constitution tempers the free speech right guaranteed under Article 19 (1)(a) with restrictions now deemed reasonable. The first category is wide enough to encompass humour in all of its
facets including poor and intemperate jokes.

Article 10 of the European Convention of Human Rights recognises restrictions similar to Article 19(2).Yet the European Court advocated the same degree of pluralism, tolerance and broadmindedness for offensive, shocking or disturbing content, as for inoffensive information or ideas, in support of a “democratic society“.

The Supreme Court however struck a blow to satire (which may have been in bad taste), within a few days of upholding free speech by striking down S.66A of the Information Technology Act, when it held against alluding or symbolically using a historically respected personality to voice obscene content. It rejected the threshold laid down by the European Court of Human Rights for “satire“, which had pardoned an obscene and unsavoury “Apocalypse“ in the name of artistic expression and social commentary , which had resorted to exaggeration and distortion of reality to provoke and
agitate. The Supreme Court held that the “contemporary community standards test“ was of a higher degree, whilst applied to historically respected figures.
When it came to political ures however, the Patna
figures however, the Patna high court upheld free speech by refusing to injunct release of “Ram Khilawan (C.M) `N' Family“, a strong and pungent satire of political leaders, holding that legitimate creation cannot be suppressed on grounds of intolerance of a section of people or for a hostile audience, in a democratic country .

Sanction under Law

Protection against arbitrary invocation of S.153A & S.295A IPC, was built in through the need for prior sanction under S.196 Cr. P.C, either from the Central or state government. Further mere hurt sentiments alone are insufficient for initiation of criminal prosecution. It has to be demonstrated that a person insulted a religion or religious beliefs deliberately and with malicious intent to outrage religious feelings of any class of citizens of India. Hence both deliberate and malicious intent are needed to invoke the “Rangeela Rasul“ inspired
inclusion to IPC.

Kiku's case appears to have been filed under S.295A IPC, which requires prior sanction. News reports do not clarify if the state machinery played a hand in granting the same for punishing a joke or if the police travelled miles to arrest the jester for the crime of killing satire.Either way , the punitive action taken, indicates that the checks placed on invocation of the above powerful provisions have clearly failed.

R.I.P

Resuscitate (humour) in Peace should be the new mantra.After all, as the song goes “don't you know everyone wants to laugh?“ (Donald O'Connor in Singin' in the Rain). There has to be more leeway for humour unlike the thresholds for example, obscenity or sedition. Like fundamental rights are fundamental to a free republic, free laughter, without exercising those exclusive lacrimal (tear) glands in excess is existential for humans.

Law has to be interpreted and applied such that liberties have plenary play , subject to Constitutional boundaries.The duty to ensure punitive action against hate speech and protecting against excessive oppression by bigots of creative expressions, is cast on the state machinery , which power has to be exercised without fear or favor. The State, in India, is secular and ought not to take sides with one religion or other, which is prevalent in our pluralistic society , to repress or suppress human creativity. Such public power ought to be exercised not to placate the orthodox many or to suppress the heterodox few but to ensure free speech, which does not traverse the line of permissibility .